Citation Nr: 9829988
Decision Date: 10/07/98 Archive Date: 10/13/98
DOCKET NO. 96-15 246 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Entitlement to compensation benefits under the provisions of
38 U.S.C.A. § 1151 for disability of the left wrist.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The appellant served on active duty from May 1956 to May
1958.
This matter comes before the Board of Veterans’ Appeals
(Board) from a December 1995 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Salt Lake City,
Utah. When this case was previously before the Board in July
1997, it was remanded for additional development. The
requested development has been completed to the extent
possible and the case returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, it is contended that the veteran has additional
left wrist disability as a result of treatment he received
while under VA care. Specifically, the veteran reports that
after surgery was performed on his left wrist by VA in June
1989, he continued to experience severe pain in the left
wrist and a large bony fragment was discovered and removed.
He claims that after the removal of the bony fragment he was
again “left in misery” and that the symptoms became so
severe that he had to stop working and that the artificial
wrist transplant had to be removed.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that increased scar tissue
resulting from removal of a bone fragment should be
compensated as if service-connected but that the
preponderance of the evidence is against the claim for
compensation under the provisions of 38 U.S.C.A. 1151 for any
other manifestation of current left wrist disability.
FINDINGS OF FACT
1. The veteran sought treatment from VA in March 1989 with a
history of severe left wrist pain, swelling, very limited
range of motion, finger numbness, and X-rays showed
degenerative arthritis consistent with scapholunate advanced
collapse (SLAC) wrist pattern.
2. In June 1989 the veteran underwent a left wrist
arthroplasty at a VA hospital; the operation was accomplished
without complications.
3. In October 1989, the veteran reported that he experienced
very little pain and was happy with his wrist. He was
cautioned at that time not to do any physical labor, and to
lift no more than 10 pounds; the veteran was subsequently
employed at jobs which placed great stress on the left wrist.
4. In July 1991, a bony fragment was removed from the left
wrist.
5. In December 1993, an impression of end-state symptomatic
degenerative arthritis with failed left total wrist
arthroplasty was given.
6. In April 1994 hardware components of the failed left
wrist arthroplasty were removed followed by fusion of the
wrist.
7. The veteran’s left wrist disorder is currently manifested
by a fixed, fused wrist, with some increased scar tissue, a
slight increase in the ongoing pain symptoms, slight
decreased wrist strength, loss of range of motion of the left
wrist (no flexion or extension at the wrist), and 1 cm.
residual enlargement of the left wrist.
8. In July 1995 the veteran reported that he had been
informed by doctors that the work he had been doing “had
made the artificial left wrist start coming through the top
of my hand.”
9. In November 1995, a VA physician offer his opinion that
the veteran’s attempts to lift heavy items led to loosening
of the arthroplasty components, requiring the total removal
of those components and ultimately fusion of the left wrist.
10. In January 1998 a VA physician reported that the bony
fragment which had been excised in July 1991 was a residual
of the arthroplasty of June 1989 and that the veteran’s left
wrist disability was in no way a response to noncompliance on
the veteran’s part.
11. In March 1998, a VA orthopedic specialist offered his
opinion that the bone fragment was related to the
arthroplasty but that it is likely that the loosening was
promoted by the heavy demands that the veteran placed on his
wrist, as well as the poor long term outcome that such
procedures have had.
CONCLUSIONS OF LAW
1. The requirements for compensation pursuant to 38 U.S.C.A.
§ 1151 for additional scar tissue due to removal of a bone
fragment in July 1991 are met. 38 U.S.C.A. §§ 1151, 5107
(West 1991); 38 C.F.R. § 3.358. (1997).
2. The requirements for compensation pursuant to 38 U.S.C.A.
§ 1151 for any manifestations of current left wrist
disability, other than additional scar tissue due to removal
of a bone fragment, are not met. 38 U.S.C.A. §§ 1151, 5107
(West 1991); 38 C.F.R. § 3.358. (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background. The veteran was born in July 1933 and
had military service from May 1956 to May 1958. His
application for compensation under the provisions of
38 U.S.C.A. § 1151, received in September 1995, was his
initial application for compensation. The veteran has no
service-connected disabilities.
VA treatment records show that the veteran was seen in March
1989 with a “many year history” of bilateral wrist pain,
finger numbness, and night pain. He reported severe pain and
swelling on the dorsal radial wrists. The veteran indicated
that he could not tolerate the pain with the aid of Motrin.
X-rays were interpreted as showing degenerative arthritis
consistent with scapholunate advanced collapse (SLAC) wrist
pattern on both sides. Very limited range of motion and
extreme pain with motion was reported by the examiner. It
was noted that the veteran was counseled on the nature of his
disease and treatment options (arthrodesis versus
arthroplasty). It was also noted that the appellant was
currently involved in some fairly heavy labor, but he was to
undergo vocational training and he indicated that he would
modify his activities. He was scheduled for total wrist
arthroplasty on the left.
This procedure took place at the VA facility in Salt Lake
City, Utah, in June 1989. Upon admission to the hospital, a
history of remote injuries to both wrists, as well as a
history of heavy labor throughout the veteran’s working life
was noted. The veteran had experienced progressive pain all
the time. He had extremely painful motion with limited
motion. He also complained of mild dysesthesias of both
hands and was admitted for a left wrist arthroplasty. The
veteran signed Standard Form 522, wherein he acknowledged
that he understood the nature of the operation, total wrist
joint replacement, and that he willingly accepted the risk of
substantial and/or serious harm, if any, in hopes of
obtaining the desired beneficial results. The surgical
report indicates that the operation was accomplished without
complications.
In July 1989 the veteran was reportedly doing well, and in
October 1989, he reported that he experienced very little
pain and was happy with his wrist. He was cautioned at that
time not to do any physical labor, and to lift no more than
10 pounds.
In a statement dated in October 1989, a Vocational
Rehabilitation Specialist recommended that the veteran be
considered eligible and qualified to fill a position of Food
Service Worker at a VA medical facility. It was noted that
the veteran was treated with a left wrist arthroplasty and
that a right wrist arthroplasty had been recommended in the
near future. The veteran stated that he had been instructed
not to work steadily with objects over 15 to 20 pounds, not
to lift heavy objects (over 30 pounds), and not to work to
any extent above shoulder height.
In March 1990, the veteran was seen at the Hand Clinic at a
VA facility. It was reported that he was having only
intermittent catching and occasional discomfort after the
wrist arthroplasty. He was otherwise doing very well. When
the veteran was seen in June 1990, he complained of
impingement type pain on both the radial and ulnar sides of
his wrist. X-rays revealed remnants of the radial styloid
which appeared to be impinging with radial deviation. The
option of debridement of his left total wrist arthroplasty
was discussed. In July 1990, slight loosening around the
prosthesis was suspected. In December 1990, he continued to
have radially based wrist pain and was injected with
Celestone and Lidocaine with some relief of his symptoms; he
was provided with a thumb spica splint. It was noted that
his radial component might be loose and giving him pain. In
July 1991, the veteran was hospitalized for removal of a
fragment of bone in the radial aspect of his wrist which was
causing him discomfort and impingement. X-rays revealed a
large bony fragment that appeared to be loose. The bony
fragment was removed from the left wrist and he was released
from the hospital the same day. When seen in August 1991,
six weeks status post excision of heterotopic bone from the
radial side of his left wrist arthroplasty, he stated that he
continued to have pain on the radial aspect of his wrist.
The physician stated that the options consisted of treating
this conservatively, replacing the arthroplasty or fusing the
wrist. When the veteran was seen in April 1992, he continued
to have significant pain, increased numbness and tingling in
the media nerve distribution, and diffuse swelling. He was
unable to lift anything heavy. The possibility of a wrist
fusion was again noted.
Private records reflect that the veteran was seen in December
1993 for wrist complaints. Examination showed that there was
swelling diffusely about both wrists. On the left wrist,
there was a well healed scar. X-rays of the left wrist
showed a noncememted total wrist arthroplasty with come
collapse and with the stem of the distal implant eroded
through the third metacarpal. The diagnostic impression was
of end-state symptomatic degenerative arthritis with failed
left total wrist arthroplasty. The examiner subsequently
recommended that the veteran undergo fusion of both wrists.
Private records from January 1994 show that the veteran was
seen for left wrist problems. He reported diffuse pain about
the wrist, as well as numbness of the ring and middle digits,
principally while driving. He was unable to completely
actively flex the lessor digits of the left hand. It was
noted that the veteran worked “packing boxes, running a
staple, doing lots [of] lifting, and driving a fork lift.”
When the veteran was again seen in February and March 1994, a
diagnosis of failed left total wrist arthroplasty was given.
Anticipated procedures and/or treatment included removal of
hardware from the left wrist and fusion of the wrist with
iliac crest bone graft and plate and screws.
The veteran underwent surgery at the University of Utah
Hospital, Salt Lake City, Utah, in April 1994 which involved
removal of hardware components of the failed left wrist
arthroplasty followed by fusion of the wrist with iliac crest
bone from the right iliac crest.
The veteran, in his July 1995 claim, reported that he worked
for “Zero Enclosures” in shipping and receiving from May
1992 until October 1994 when he had to stop working because
of wrist problems. He stated that he had been informed by
doctors that the work he had been doing “had made the
artificial left wrist start coming through the top of my
hand” and that the artificial wrist transplant had to be
replaced.
Upon VA examination in November 1995, it was noted that the
veteran had experienced increasing problems with his left
wrist since the total left wrist arthroplasty in 1989; that
his prosthetic piece had ultimately loosened from the wrist;
and that the prosthetic piece had been removed and a fusion
of the wrist was performed at the University of Utah. The VA
examiner noted that the left wrist was fused in the 180
degree position with no dorsiflexion. There was tenderness
over the radial aspect of the wrist which had reportedly
persisted ever since placement of the prosthesis. The
examiner reported that the prime function of arthroplasty of
the wrist was to make a less painful joint and that the
ability to perform strenuous activity using the wrist with
the arthroplasty was very limited. The examiner stated that
the veteran had attempted to lift heavy items after the
procedure and that this led to loosening of the arthroplasty
components, requiring the total removal of those components
and ultimately fusion of the left wrist.
In July 1997, the Board remanded the veteran’s claim for
additional development to include obtaining a statement as to
the veteran’s employment and medical history after the 1989
total left wrist replacement, private records, and opinions
from a specialist regarding the veteran’s left wrist
disability.
In a statement received in November 1997, the veteran
provided his employment history. The statement reflects that
the veteran was engaged in manual labor type jobs for the
most part since before the surgery in 1989 and thereafter up
to the present time.
The veteran was accorded an examination for disability
evaluation purposes in January 1998. The report of this
examination reflects that the examiner reviewed the claims
folder and examined the veteran’s left wrist. The examiner
stated that review of the claims folder revealed a history of
bilateral wrist injury, with the development of severe
degenerative joint disease, constant pain, more severe on the
left. A left wrist arthroplasty was performed at a VA
facility in June 1989, with some temporary relief in both
pain and increasing range of motion, but soon followed by
increasing pain, especially over the radial aspect of the
left wrist. X-rays in 1991 revealed a large, loose, bony
fragment, a residual of the arthroplasty of June 1989, which
was excised in July 1991. The arthroplasty subsequently
failed with carpal shortening and dynamic imbalance of the
flexor muscle group of the left wrist, with resultant
incomplete finger flexion. Due to the severity and
chronicity of the left wrist pain, the prosthesis was removed
and an arthrodesis was performed in April 1994. Following
this procedure, the left wrist was fixed in the neutral
position with complete loss of all range of motion at the
wrist. The veteran continued to have complaints of pain and
tenderness over the left wrist. The physician stated that
the disability was in no way a response to noncompliance on
the part of the veteran. The arthroplasty failed,
complicated by a loose, large, bony, residual fragment,
necessitating excision of this bony fragment and with the
onset of subsequent, severe pain related to the failed
arthroplasty, finally necessitating an arthrodesis. Physical
examination of the left wrist revealed a fixed, fused wrist,
with quite marked tenderness over both the dorsal and ventral
aspects, with residual enlargement, the circumference of the
left wrist measuring 1 cm over that of the right wrist at the
tip of the styloid process.
The RO determined that the opinion had been provided by an
internist rather than an orthopedic specialist and that the
opinion expressed by the examiner was not adequately
supported with appropriate facts and reasoning. The RO
returned this examiner’s report as inadequate for rating
purposes.
In March 1998, a VA orthopedic specialist provided the
following report:
HISTORY OF PRESENT ILLNESS: I have been
asked to provide [an] opinion as outlined
in BVA remand regarding the patient’s
left wrist disability and relationship of
arthroplasty surgery to the patient’s
ongoing disability. Specific questions
will be enumerated below.
The patient has a long and complicated
history. The history of his wrist
problems is well documented in the BVA
remand. Briefly, the patient is a 64-
year-old male who had [an] injury to his
wrist involved in a fall in the distant
past. He developed a SLAC wrist with
advanced degenerative change secondary to
scapholunate dissociation.
In 1989 he was offered [the] option of
fusion versus arthroplasty and elected to
proceed with arthroplasty to retain some
joint motion. He was advised to avoid
any heavy lifting and had specific
documented restriction per Dr. Hugh West,
limiting his lifting to 10 pounds at
work. The patient continued to engage in
heavy lifting activities in order to
retain his employment. These are well
documented in his employment history. He
had persistent dysfunction and pain when
the arthroplasty was in place. A bone
fragment was removed in 1990 (sic) and
after further failure and loosening of
the prosthesis, it was converted to a
wrist fusion in 1994.
The patient is quite frustrated with the
function of his wrist and has very
obvious complaints regarding his
function, as well as a very strong
opinion that this should be related to
disability from the arthroplasty surgery.
He has many complaints about his
inability to engage in daily activities
and particularly in his ability to obtain
gainful employment. He has been refused
work at the Post Office and also as a
truck driver secondary to his wrist
limitations.
The patient did have some brief
postoperative limitations to a maximum
ten pound lift following the fusion.
This was raised to 50 pounds limit
following healing of the fusion. It is
not clear whether [the veteran] under-
stands that he no longer has the
significant limitations that were placed
on him when the arthroplasty was present.
The patient’s specific complaints are of
very weak pinch strength and limited
strength in the wrist. He feels that he
drops things, also feels that when he has
scratches or cuts on the hand or wrist it
is slow to heal. He has pain when
rotating the wrist in certain positions,
particularly when reaching behind this
body and does not like the limited motion
associated with the fusion. He does feel
that overall his wrist function is
improved and pain level has declined
significantly following the conversion of
the arthroplasty to a fusion.
PHYSICAL EXAMINATION: He has a well-
healed 6 inch scar over the dorsum of
this wrist. There is apparent solid
union of the wrist which is positioned in
approximately 10 degrees of dorsiflexion
in neutral ulna-radial deviation. He has
decreased grip strength and is unable to
provide any effective resistance to keep
index finger in a closed fist on that
side, it is 5/5 on the other side. His
interosseous and extensor pollicis
strength are normal. He has symmetric
supination and pronation when compared to
the uninvolved wrist with 80 degrees of
supination and 90 degrees of pronation.
He has no flexion or extension at the
wrist.
LABORATORY DATA: Radiographs demonstrate
a well-healed fusion with a dorsal plate
running from the distal radius up to the
proximal portion of the second
metacarpal.
ASSESSMENT: Status post conversion of
left wrist arthroplasty to left wrist
fusion with functional limitations
described above.
In regards to specific question asked in
the BVA remand:
3A. Were bony fragment and loosening
noted in 1990 the necessary consequences
of the 1989 surgery? Does either finding
represent additional left wrist
disability?
Wrist arthroplasty is fraught with high
complication rate. It is a difficult
surgery with a high failure rate and its
use has largely been abandoned due to the
high loosening rate and poor function.
The preferred operation at the current
time is for wrist arthrodesis. The
loosening noted in 1990 is common
occurrence with arthroplasty surgery and
it is likely that the loosening was
promoted by the heavy demands that the
patient placed on his wrist with his
frequent heavy lifting and use in manual
labor type of position.
Development of the bone fragment apparent
in progression of films from
postoperative views in 1989 to the pre-
excision views in 1990 seem to reveal
progression of ossification of a small
fragment of bone along the radial aspect
of the wrist. This may represent
increasing heterotopic ossification
versus production of a bone fragment from
proximal migration of the prosthesis. It
is likely that the bone fragment was
related to the arthroplasty.
Question B: Does the veteran have
additional left wrist disability now as
compare to condition of left wrist prior
to June 1989 left total wrist
arthroplasty, keeping in mind fusion of
the left wrist was discussed as an
opinion in 1989?
The patient has had progressive failure
of an arthroplasty with at least two
additional surgical procedures which is
likely to result in some increased scar
tissue and may have resulted in slight
increase in the decreased wrist strength.
However, overall I would expect that his
function at this point is nearly
equivalent to what he would have
experienced had he had the fusion per-
formed in 1989. Acknowledged
consequences of any wrist fusion are
significantly decreased wrist strength
and some degree of ongoing [pain] with
certain activities.
C. If the veteran now has additional
left wrist disability, is such disability
due to the failure of the veteran to fol-
low instruction, such as overuse of the
left wrist, or continuance of a natural
progress of disease or injuries for which
the arthroplasty was performed? Is the
additional disability the result of VA
treatment in 1989 and thereafter?
Again, it is likely that he does have
some increased scar tissue and may have a
slight increase in the ongoing pain
symptoms. These are likely related to
the fact that he had a failed
arthroplasty, but it is also likely that
the failure of the arthroplasty was
accelerated by the heavy demands he
placed on the wrist, as well as the poor
long term outcome that such procedures
have had.
Legal Criteria. The threshold question that must be resolved
with regard to a claim is whether the veteran has presented
evidence that the claim is well grounded. Under the law, it
is the obligation of the person applying for benefits to come
forward with a well-grounded claim. 38 U.S.C.A. § 5107(a).
A well grounded claim is “[a] plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of § 5107(a).” Epps v. Brown, 126 F.3d 1464,
1468 (Fed. Cir. 1997). Mere allegations in support of a
claim that a disorder should be service-connected are not
sufficient; the veteran must submit evidence in support of
the claim that would “justify a belief by a fair and
impartial individual that the claim is plausible.”
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992). The quality and quantity of the evidence
required to meet this statutory burden depends upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993).
The United States Court of Veterans Appeals (Court) has held
that, in general, a claim for service connection is well
grounded when three elements are satisfied with competent
evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First,
there must be competent medical evidence of a current
disability (a medical diagnosis). Rabideau v. Derwinski, 2
Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992) Second, there must be evidence of an
occurrence or aggravation of a disease or injury incurred in
service (lay or medical evidence). Cartwright v. Derwinski, 2
Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465
(1994). Third, there must be a nexus between the in-service
injury or disease and the current disability (medical
evidence or the legal presumption that certain disabilities
manifest within certain periods are related to service).
Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7
Vet. App. 359 (1995).
Also controlling in this case are decisions of the Court
concerning the types of evidence required to establish
important facts. The Court has held that a lay person can
provide probative eye-witness evidence of visible symptoms,
however, a lay person can not provide probative evidence as
to matters which require specialized medical knowledge
acquired through experience, training or education. Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has
further held that “where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is ‘plausible’ or
‘possible’ is required.” Grottveit, 5 Vet. App. at 93. A
claimant cannot meet the burden imposed by § 5107(a) merely
by presenting lay testimony because lay persons are not
competent to offer expert medical opinions. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Consequently, lay
assertions of medical causation cannot constitute sufficient
evidence to render a claim well grounded under § 5107(a); if
no cognizable evidence is submitted to support the claim, it
cannot be well grounded. Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992). For the purposes of determining
whether a claim is well grounded, testimony will be presumed
to be credible. However, such testimony must be competent
and must not be inherently incredible. King v. Brown, 5 Vet.
App. 19, 21 (1993).
The veteran is seeking entitlement to compensation benefits
for additional left wrist disability pursuant to 38 U.S.C.A.
§ 1151. As applicable to this case, 38 U.S.C.A. § 1151
provides as follows:
Where any veteran shall have suffered an
injury, or an aggravation of an injury, as
the result of hospitalization, medical or
surgical treatment, . . . and such injury or
aggravation results in additional disability
to or the death of such veteran, disability
or death compensation under this chapter . .
. shall be awarded in the same manner as if
such disability, aggravation, or death were
service-connected.
38 U.S.C.A. § 1151 as in effect prior to October 1, 1997. VA
regulations implementing this statute are found at 38 C.F.R.
§§ 3.358 and 3.800. The version of 38 C.F.R. § 3.358, most
beneficial to the veteran and thus applicable in this case,
provides as follows:
(a) General. Where it is determined that there is
additional disability resulting from a disease or injury
or an aggravation of an existing disease or injury
suffered as a result of training, hospitalization,
medical or surgical treatment, or examination,
compensation will be payable for such additional
disability.
(b) Additional disability. In determining that
additional disability exists, the following
considerations will govern:
(1) The veteran's physical condition immediately
prior to the disease or injury on which the claim
for compensation is based will be compared with the
subsequent physical condition resulting from the
disease or injury, each body part involved being
considered separately.
(i) As applied to examinations, the physical
condition prior to the disease or injury will
be the condition at time of beginning the
physical examination as a result of which the
disease or injury was sustained.
(ii) As applied to medical or surgical
treatment, the physical condition prior to the
disease or injury will be the condition which
the specific medical or surgical treatment was
designed to relieve.
(2) Compensation will not be payable under 38
U.S.C. 1151 for the continuance or natural progress
of disease or injuries for which the training, or
hospitalization, etc., was authorized.
(c) Cause. In determining whether such additional
disability resulted from a disease or an injury or an
aggravation of an existing disease or injury suffered as
a result of training, hospitalization, medical or
surgical treatment, or examination, the following
considerations will govern:
(1) It will be necessary to show that the
additional disability is actually the result of
such disease or injury or an aggravation of an
existing disease or injury and not merely
coincidental therewith.
(2) The mere fact that aggravation occurred will
not suffice to make the additional disability
compensable in the absence of proof that it
resulted from disease or injury or an aggravation
of an existing disease or injury suffered as the
result of training, hospitalization, medical or
surgical treatment, or examination.
(3) Compensation is not payable for the necessary
consequences of medical or surgical treatment or
examination properly administered with the express
or implied consent of the veteran, or, in
appropriate cases, the veteran's representative.
"Necessary consequences" are those which are
certain to result from, or were intended to result
from, the examination or medical or surgical
treatment administered. Consequences otherwise
certain or intended to result from a treatment will
not be considered uncertain or unintended solely
because it had not been determined at the time
consent was given whether that treatment would in
fact be administered.
38 C.F.R. § 3.358.
Under 38 C.F.R. § 3.358(c)(3), compensation is precluded
where disability (1) is not causally related to VA treatment,
or (2) is merely coincidental with the VA treatment, or
(3) is the continuance or natural progress of diseases or
injuries for which VA treatment was authorized, or (4) is the
certain or near certain result of the VA treatment. Where a
causal connection exists, there is no willful misconduct, and
the additional disability does not fall into one of the above
listed exceptions, the additional disability will be
compensated as if service connected. Compensation under 38
U.S.C.A. § 1151 is to be awarded for an increase in
disability that is the result of action by the VA, and not
from a coincidental event. The mere fact that aggravation
occurred will not be sufficient to establish entitlement to
benefits under § 1151 in the absence of proof that such
increase in disability resulted from action by the VA.
The Board notes that, effective in October 1, 1997,
38 U.S.C.A. § 1151 was amended by Congress. See § 422(a) of
PL 104-204. The purpose of the amendment was, in effect, to
overrule the Supreme Court's decision which held that no
showing of negligence is necessary for recovery under § 1151.
However, VA General Counsel held that all claims for benefits
under 38 U.S.C.A. § 1151 filed before October 1, 1997, such
as the claim at issue here, must be adjudicated under the
provisions of 38 U.S.C.A. § 1151 as they existed prior to
October 1997. See VAOPGCPREC 40-97, 63 Fed. Reg. 31,263
(1998).
Analysis. The evidence shows that when the veteran was seen
by VA in 1989 he had a long history of wrist problems,
apparently beginning with injury to his wrist as the result
of a fall in the distant past. He had developed advanced
degenerative arthritis consistent with scapholunate collapse.
The veteran was evaluated and was counseled on his options
for treatment - arthrodesis or arthroplasty. He chose the
arthroplasty which permitted him to retain some joint motion
but which had a high incidence of loosening. Initially, the
procedure provided relief from pain and increased range of
motion. However, after the veteran returned to employment
requiring heavy lifting, he experienced increasing pain and a
bony fragment was found and excised in July 1991. The
veteran continued to be employed in positions requiring
heaving lifting and the arthroplasty loosened. In April 1994
the arthroplasty was converted to a fusion of the wrist.
A VA physician who examined the veteran in January 1998
offered his opinion that the bony fragment which was excised
in July 1991 was a residual of the arthroplasty of June 1989.
A VA orthopedic specialist who examined the veteran in March
1998 also felt that the bone fragment was related to the
arthroplasty and that the additional surgical procedure to
remove the fragment resulted in some increased scar tissue.
In the Board’s opinion, the additional scar tissue resulting
from removal of the bony fragment in July 1991 is causally
related to VA treatment and should be treated as a service-
connected disability under 38 U.S.C.A. § 1151.
Other than the bone fragment which was removed in July 1991,
the Board is unable to identify any additional disability
secondary to VA treatment. The veteran’s left wrist
disability prior to the June 1989 arthroplasty was manifested
by advanced degenerative changes secondary to scapholunate
dissociation with severe pain, swelling, and very limited
range of motion. Following the arthroplasty, the veteran
returned to manual labor employment which placed great stress
upon the left wrist. The arthroplasty loosened and had to be
converted to a left wrist fusion. The veteran’s left wrist
disability is currently manifested by a fixed, fused wrist,
with some increased scar tissue, a slight increase in the
ongoing pain symptoms, slight decreased wrist strength, and 1
cm. residual enlargement of the left wrist. The loosening
and subsequent failure of the arthroplasty were not the
certain or near certain result of VA treatment, i.e., the
arthroplasty. However, there is no competent evidence which
reflects that the loosening and failure of the arthroplasty
were causally related to VA treatment. The preponderance of
the evidence reflects that the loosening and failure of the
arthroplasty were due to the heavy demands the veteran placed
on the wrist and the underlying progression of the disease
process.
While a VA physician offered his opinion in January 1998 that
the failed arthroplasty was in no way a response to
noncompliance on the part of the veteran, this physician did
not indicate that the failed arthroplasty was causally
related to VA treatment. A subsequent opinion from an
orthopedic specialist in March 1998 indicates that the
loosening that the veteran experienced was promoted by the
heavy demands that the veteran placed on his wrist. This
opinion is supported by the veteran’s work history as well as
earlier medical opinions, including the opinion of November
1995. Additionally, the orthopedic specialist who examined
the veteran in March 1998 indicated that, overall, the
veteran’s current left wrist function was nearly equivalent
to what he would have experienced if he had had the fusion
performed in 1989 instead of the arthroplasty.
The only evidence of record which relates the veteran’s
current left wrist impairment to the June 1989 arthroplasty
consists of the veteran’s assertions. As the veteran is a
layman, his contentions are not probative as he is not
competent to provide an opinion on medical causation. See
King, Espiritu, Tirpak, Grottveit, and Layno, supra. These
assertions do not constitute competent evidence to the effect
that the alleged additional left wrist disability resulted
from VA care. “Just as the BVA must point to a medical
basis other than its own unsubstantiated opinion, . . . [the]
appellant cannot meet his initial burden by relying upon his
own . . . opinions as to medical maters.” Grottveit, supra.
As the record is devoid of competent evidence that any left
wrist impairment, other than the additional scar tissue due
to removal of the bony fragment in July 1991, is causally
related to VA treatment, the veteran’s claim for compensation
under 38 U.S.C.A. § 1151 for any other left wrist impairment
is denied.
ORDER
The claim for compensation pursuant to 38 U.S.C.A. § 1151 for
additional scar tissue due to removal of a bony fragment in
July 1991 is allowed.
The claim for compensation pursuant to 38 U.S.C.A. § 1151 for
any impairment of the left wrist, other than residuals of
removal of a bony fragment, is denied.
Gary L. Gick
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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